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Monthly Archives

December 2011

‘BAD HAIRCUT’ AND UNEQUAL POLICY ENFORCEMENT LEAD TO TROUBLE FOR EMPLOYER

By Your Employee Matters | No Comments

In NLRB v. White Oak Manor, the Fourth Circuit Court of Appeals enforced a decision by the National Labor Relations Board finding that an employer violated the National Labor Relations Act when it discharged an employee for allegedly photographing employees at work without permission. The Court agreed with the Board’s findings that the employee was actually discharged because of protected concerted activity and that the employer had not enforced its photography and dress code policies consistently.

Nichole Wright-Gore worked as a supply clerk for White Oak Manor. White Oak’s policies prohibited employees from wearing hats and taking photographs inside the long-term care facility. Wright-Gore was embarrassed about a bad haircut and started to wear a hat to work, without comment from any supervisor. After a week, however, when supervisors told her to remove the hat, she refused and was sent home. The next day, White Oak employees dressed up in costumes for Halloween. Wright-Gore’s costume included a hat, but her supervisor made her remove the hat pursuant to company policy. Wright-Gore complained that White Oak was enforcing the hat policy unequally, but her supervisor told her to worry only about herself and gave her a written warning for insubordination because she had refused to remove her hat the day before.

During the next few weeks, Wright-Gore photographed several employees wearing hats to work and violating other White Oak dress policies, such as failing to cover up their tattoos. She photographed some employees with their consent, but also took photographs of employees without their consent. She also shared the photographs with other employees and discussed the unequal treatment with them in an attempt to build support for her argument. White Oak eventually discharged Wright-Gore for violating the photography policy.

She then filed an unfair labor practice charge alleging that White Oak interfered with her right to engage in protective concerted activity. The Administrative Law Judge (ALJ) found that Wright-Gore’s complaints became protected concerted activity when they evolved into an effort to have White Oak enforce its dress code policies fairly. Another important issue was whether she lost protection of the Act by taking pictures of other employees without permission, in violation of White Oak policy. The ALJ held that she did not, in part, because there was evidence that other employees took pictures of each other without permission, and even displayed the pictures around the facility, without repercussion. The Board affirmed the ALJ findings.

On appeal, White Oak argued that Wright-Gore could not have engaged in protected concerted activity because she initially acted out of pure self- interest, and did not intend to act on behalf of a broader group. The Fourth Circuit rejected this argument and enforced the Board’s decision. As the court noted, “[t]hat an employee’s self-interest catalyzed her decision to complain about working conditions does not inexorably bar a determination that her actions were protected and concerted.” Thus, the fact that Wright initially acted out of her own self- interest did not remove her actions from the protections of the Act. Moreover, the court’s decision emphasized the fact that White Oak had not enforced its photography or dress code policies consistently.

This case reinforces the importance of employers enforcing workplace policies consistently and the reality that seemingly individualized complaints can lead to employer decisions which conflict with the National Labor Relations Act.

Courtesy Franczek Radelet

LEAVE AS A REASONABLE ACCOMMODATION

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One of the more vexing issues facing both employers and employees involves leave time related to a medical condition, especially when the period of leave exceeds an employer’s permitted leave allowance or otherwise violates an established attendance policy. Although such situations might be challenging and confusing, employers must confront them directly because using leave necessitated by an employee’s disability constitutes a “reasonable accommodation” under the ADA.

The U.S. Equal Employment Opportunity Commission’s (EEOC) Reasonable Accommodation Guidance provides examples of some of the reasons an employee with a disability might require leave:

  • Obtaining medical treatment or rehabilitation services related to the disability.
  • Recuperating from an illness or an episodic manifestation of the disability.
  • Obtaining repairs on prosthetic device or other equipment such as a wheelchair.
  • Avoiding temporary adverse conditions in the work environment (for example, an air-conditioning breakdown causing unusually warm temperatures that could seriously harm an employee with multiple sclerosis).
  • Training in the use of a service animal or assistive device.
  • Training in the use of Braille or sign language.

Here’s a discussion of some frequent and confusing leave-related issues that employers and employee have presented to JAN.

How Much Leave Is Reasonable? The ADA does not set a specific amount of time relative to the use of leave as a reasonable accommodation. As with any accommodation situation, you should consider a period of leave for an employee with a disability on a case-by-case analysis. If an employee needs a leave of absence that exceeds his or her accrued paid leave, the employer should permit the employee to exhaust the paid leave and then allow the use of unpaid leave absent undue hardship.

Although there’s no limit on the amount of leave used as a reasonable accommodation under the ADA, the EEOC has held that employers need not grant indefinite leave as a reasonable accommodation (see the EEOC Guidance on Applying Performance and Conduct Standards, Question 21). However, the employee need not provide a specific, fixed date of return. A request for leave is acceptable with an approximate date of return (e.g., around the end of August) or a range of dates for a return to work (e.g., sometime between August 24 and September 23).

ADA and the Family and Medical Leave Act (FMLA). An employee’s rights under the ADA and the FMLA are separate and distinct. The EEOC has ruled that when an employee is entitled to leave under both laws, the employer should allow leave under the law providing the employee with the greater rights (see the EEOC Fact Sheet on the FMLA, ADA, and Title VII). Additionally, employers should note that the ADA might require them to grant leave beyond the 12 weeks allowed under the FMLA as a reasonable accommodation. In this case, an employer can consider the FMLA leave taken in determining whether the requested leave time poses an undue hardship.

Erratic or Unreliable Attendance. The ADA can require employers to modify attendance policies as a reasonable accommodation in the absence of undue hardship. This does not mean that employers must exempt an employee from time and attendance requirements completely or accept irregular and unreliable attendance unquestionably. Frequent occurrences of tardiness or absenteeism, particularly during an extended period and without adequate notice, could certainly impose an undue hardship in many situations. See the Commission’s Guidance on Applying Performance and Conduct Standards for a detailed discussion with examples of specific scenarios.

Alternative Accommodations. Although it makes sense for employers to give an employee’s choice of accommodation primary consideration when more than one reasonable accommodation is possible, they can ultimately choose the accommodation to be implemented, assuming that it’s equally effective. Accordingly, under the ADA an employer can offer a reasonable accommodation that requires an employee to remain on the job, as long as it’s effective and doesn’t interfere with the employee’s medical needs.

Holding the Employee’s Position. The ADA requires an employer to consider returning the employee to his or her same position in the absence of undue hardship. If undue hardship applies, the employer must consider reassignment to a vacant, equivalent position for which the employee is qualified.

Undue Hardship. As with any other reasonable accommodations, whether an employer should allow the use of leave as an accommodation will sometimes come down to an undue hardship analysis. In the case of leave, undue hardship will generally relate to a possible disruption in operations of the entity. For instance, the absence of an employee who performs highly specialized duties might create legitimate undue hardship issues, as might leave that occurs in a frequent and unpredictable manner. Generalized assessments are not adequate, because undue hardship must be determined based on individual and specific circumstances. Additionally, the EEOC has ruled that an employer cannot base an undue hardship claim on the argument that a reasonable accommodation might affect the morale of other employees negatively or that other employees might have to cover for the employee who is on leave.

What to Remember. Ultimately, much of the confusion involving leave as an accommodation occurs when there are no clear and open lines of communication. Lack of communication is usually the major obstacle to executing an effective accommodation solution. All parties need to be aware of any relevant updates or concerns, and everyone should make an effort to keep the information flowing. If you need ideas on how to encourage ongoing communication during the accommodation process, contact JAN.

Bill McCollum, MPA, Consultant

MEDICAL DOCUMENTATION: THINK ABOUT WHAT’S NEEDED AND STOP THERE

By Your Employee Matters | No Comments

In our experience at JAN, there seems to be a great deal of confusion about medical documentation under the ADA. Employers aren’t sure what they can ask for, when they can ask for it, or whether the ADA Amendments Act has changed the rules for medical documentation. Employees aren’t sure what medical information they have to provide or how much to disclose. Medical professionals aren’t sure what documentation will be most helpful in getting their patients the workplace accommodations they need. Most of these questions come up when an employee requests an accommodation.

The good news: The medical inquiry rules that apply when an employee requests an accommodation are less complicated when they might seem. The general rule is that when the disability or need for accommodation is not obvious, an employer may require an employee to provide documentation that can substantiate that s/he has an ADA disability and needs the reasonable accommodation requested, but can’t ask for unrelated documentation. So when thinking about what medical information to request or to provide, think about what is needed and stop there!

Let’s start with the documentation needed to substantiate that the employee has a disability. The definition of disability for accommodation purposes is “a physical or mental impairment that substantially limits a major life activity or a record of such an impairment.” To determine whether an employee has a disability, the employer can ask whether the employee has (or had) an impairment. If yes, you can ask whether the impairment affects (or affected) a major life activity. You can also ask whether the impairment substantially limits (or limited) the major life activity.

This is where the ADA Amendments Act has made some changes. Although the definition of “disability” remained unchanged, the threshold for showing substantial limitation is much lower than before. This means that the documentation needed to show that an employee has a disability should be far less extensive.

What about the documentation needed to substantiate the need for an accommodation? The ADA Amendments Act did not change the reasonable accommodation provisions of the ADA, so the rules for medical documentation likewise remained unchanged. An employer may verify that the accommodation is needed, ask questions about the employee’s limitations that are causing the problem, and get other relevant information about the request to help determine effective accommodations.

For more information, see recently updated JAN publications related to medical documentation, including:

– Linda Carter Batiste, J.D., Principal Consultant

DISABILITY EMPLOYMENT STATISTICS

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The Institute on Disability at the University of New Hampshire has just issued its Annual Disability Statistics Compendium. Here are some of the stats related to employment in 2010. Click here to see the entire report.

Among the 19,048,426 individuals with disabilities ages 18 to 64 years living in the community, 6,368,644 were employed — an employment rate of 33.4%. In contrast, among the 172,089,634 individuals without disabilities ages 18 to 64 years living in the community, 125,358,735 were employed — an employment rate of 72.8%. The employment rate for people with disabilities was highest in North Dakota (54%) and lowest in Kentucky (25.7%).

The employment rate for individuals with disabilities ages 18 to 64 years living in the community was 33.4% while the rate for individuals without disabilities ages 18 to 64 years living in the community was 72.8% — an “employment gap” of 39.4%. The employment gap was greatest in Maine (48.9%) and smallest in Wyoming (27.7%).

The employment gap between individuals with and without disabilities ages 18 to 64 years living in the community was 39.4%, compared with 39.1% in 2009.

Among the 19,048,426 individuals with disabilities ages 16 to 64 years living in the community, 3,834,727 were employed fulltime, year-round — a full-time, year-round employment rate of 20.1%. In contrast, of the 172,089,634 individuals without disabilities ages 16 to 64 years living in the community, 88,683,091 were employed full-time, year-round — a full-time, year-round employment rate of 51.5%. The full-time, year-round employment rate for people with disabilities was highest in North Dakota (32.1%) and lowest in Maine (15.2%).

Finally, the full-time, year-round employment rate for individuals with disabilities ages 18 to 64 years living in the community was 20.1%, while the full-time, year-round employment rate for individuals without disabilities ages 18 to 64 years living in the community was 51.5% — a full-time, year-round employment gap of 31.4. The full-time, year-round employment gap was greatest in Maine (38.8%) and smallest in Utah (24.1%).

What can an employer take away from this?

  • Obtaining gainful employment can be a real struggle for people with disabilities.
  • Some communities are more “open” to employing the disabled. Some of this difference has to do with the types of jobs available, employment programs, and incentives.
  • As “good people” we can rise above any perceived limitations and employ those with disabilities based on the results they are capable of producing.

To help with accommodation ideas go to http://askjan.org/.

CAN YOU CUT BENEFITS COSTS BY MOVING EMPLOYEES TO MEDICARE?

By Your Employee Matters | No Comments

Many employers are doing everything they can to reduce benefit costs. One of our HR That Works Members posed this question to Alan Levy, a benefits law expert in our network.

“Q: If an employee is eligible for Medicare, can we state/insist that they must leave our company plan and accept Medicare?

“A: We had this question for a client recently. There are serious penalties for forcing an active employee to give up the employer’s plan and go to Medicare, and offering a personal incentive might pose a problem. However, an employee can change to Medicare voluntarily, without restrictions or charges for pre-existing conditions, etc. This also applies to Medicare supplements and advantage problems. Some employees make the change voluntarily to use the current rule’s automatic unqualified acceptance, as well as to assure any “grandfathered” rights if Congress reduces or alters the program in the future. (Every “reform” proposal seems to exempt anyone already on Medicare.) A bigger problem is what happens to an employee’s spouse who isn’t old enough for Medicare if the employee leaves the company plan and goes to Medicare. Although COBRA works for a while, extension of this period is problematic.

“Finally, an employer offering a Medicare supplement or advantage plan to all who could qualify is not considered an improper incentive; the danger comes when the employer offers an individual some extra amount. The only exception I know of in this regard is the Third Circuit rule (applicable only in PA, NJ, and DE), Erie County, which treats certain variations of this scenario as age discrimination under the ADEA. EEOC says it will not apply the Third Circuit rule anywhere else in the nation, which seems to support the idea that employers offering the supplement, etc. is permissible.”

This advice is limited to the facts of the situation. As Alan points out, the EEOC has not drawn a black and white line on permissible supplements. The Social Security Administration provides an excellent publication on the interplay between private insurance and Medicare payments. See pages 13-14

QUANTUM HR

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Our understanding of the physical world grows ever deeper. Quantum physicists have taught us that simply observing matter can affect its activity. We know that bits of matter once bonded together remain “entangled” even when separated by great distances. We should remember from Physics 101 that matter likes to settle into its least active state (entropy).

What do these facts have to do with HR? It’s simple: How people think about doing their jobs has implications that might be far broader than realized. If we accept the teachings of quantum physics at face value, then:

  • Due to entanglement, how you go through your day will have an invisible, but perceptible impact on how the people you bond with feel every day. If you’re having a bad day, at some point, many of your co-workers and loved ones will feel this fact.
  • Much of our existence depends on what we choose it to be. The very concept of “making your day” has scientific backing. As the proverb says, “As you believe, so shall you achieve.”
  • Finally, unless you’re excited, it’s natural to use the least amount of energy possible to do a job. If you want to move yourself to a higher frequency, you have to get excited. Although some of us do this naturally, most people need a little motivation to get going. Don’t underestimate the power of this motivation in your business and personal life.

Because any organization is a collection of individuals, these concepts apply to the group as a whole. A positive company culture means that there’s a positive vibration among the workforce.

EDITOR’S COLUMN: HUMAN RESOURCE INFORMATION SYSTEMS (HRIS) – NEW AND IMPROVED

By Your Employee Matters | No Comments

I see Human Resource Information Systems (HRIS) as the equivalent of “QuickBooks for managing the workforce.” They can handle employee data beginning with payroll right through to COBRA administration. Along the way, HRIS systems offer bells and whistles to help manage this data, including payroll, benefits administration, leave management, learning management, and more.

As a rule, companies with 100 employees or more have dominated the HRIS market, because these systems require a significant investment in time and money – with little short-term return. However, increasing competition in the upscale market means that HRIS providers are beginning to target smaller employers.

Here are some of the trends with these systems:

  • Integration with social media platforms, including everything from Facebook to Twitter, et al.
  • An improved interface that makes the system easier to use and more inviting for employees.
  • Tie-ins to insurance billing (real time Workers Comp billing, benefits billing, etc.)
  • Mobile access, including for time-keeping purposes, as well as integration with tablet accessibility (iPads, etc.)
  • Greater assistance with online recruiting and link to recruiting portals.
  • Increased use of “talent analytics” that help with recruitment, workforce planning, and succession planning, together with improved analysis of workforce facts, trends, etc.
  • The “gamification” of these systems.
  • Influence of “the cloud” — the storage of data maintained on secure third-party Web sites, rather than your own site (like HR That Works). Of course, you’ll have to make sure that these third-party sites are, in fact, secure.
  • Integration of career planning “dashboards.”
  • Increased usage of paperless technology for everything from submitting resumes to electronic signatures on documents.
  • Integration with employee wellness programs.

The main advantage of an HRIS system, as with a QuickBooks program, is having well managed data. HRIS advertising stresses the time saved in pulling reports on such topics as turnover. However, most smaller companies already know their turnover level.

Second, bear in mind that companies using HRIS are already running at 75 mph. Where will they get more time to use the system? When analyzed properly, do these systems really save time? Are HRIS bells and whistles truly related to corporate strategy or are they nothing more than distracting shiny objects?

SOCIAL SECURITY SPIRALING TOWARD INSOLVENCY

By Life and Health | No Comments

Social Security’s disability program is expected to become insolvent in less than a decade. If Congress fails to solve the issues leading to this problem, Social Security will run out of money, which means they won’t be able to pay full benefits. Due to economic difficulties, people of the baby boomer generation are applying for Social Security disability benefits. Unfortunately, many disabled workers of this generation held jobs that were eliminated due to economic decline. These individuals can’t find new jobs, so disability income is the only option they know is available.

The deluge of applications flooding the Social Security office has created a backlog. The program has already been in the red financially for several years. The new influx of applications has created a load that threatens to collapse the structure entirely. Unfortunately, nearly two-thirds of initial applications are rejected. This brings the need for a lengthy appeal process, which might consume up to two years. Of the nearly 14 million people who receive federal disability benefits, more than 4 million receive SSI, more than 7.5 million receive Social Security, and more than 1.5 million receive both types of benefits.

In an attempt to save Social Security from collapsing, Congress is targeting overpaid balances from the various programs. In addition, they’re implementing enhanced enforcement. A deficit-reduction package they allowed is expected to bring at least a $4 billion boost over the next decade for the Social Security budget. This amount will help to invest in programs used for identification of people who no longer meet the qualification criteria. Those who don’t meet the criteria won’t be able to receive benefits. This process aims to limit the sparse funds only to those who truly need them. Although not everyone abuses disability benefits, studies have shown that there are some individuals receiving aid who aren’t truly disabled.

If the plan works, it could save approximately $12 billion over the span of a decade. Funds will be distributed to the backlogged applicants who need disability income. In addition to this, there will be measures in place to prevent those who don’t need benefits from getting them. There have also been recommendations made to boost the benefits for the elderly and individuals who have a long-term disability. In addition to this, suggestions have been made to slow the benefit growth for high earners. Raising full and early retirement ages has also been suggested.

BENEFITS OF SUFFICIENT LIFE INSURANCE

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Although death is something that everyone must face eventually, most people are comfortable talking about it. However, it’s important to make plans to ensure that loved ones who are left behind will be taken care of. In the past, most people relied on Life insurance coverage from employers but neglected to buy their own coverage if they lost their jobs. When people lose their jobs, they lose coverage provided by their employers. Since so many people have lost their jobs in the past decade, the issue of adequate Life insurance has become even more important. In addition to this, many employers have eliminated or cut their Life insurance coverage to save money. Purchasing Life insurance earlier in life is important. As people age, the amount of money required for sufficient coverage increases.

There are several reasons why it’s important to have sufficient Life insurance. The main reason for purchasing this coverage is to ensure that spouses, children or other living relatives have the money they’ll need to survive on and pay for final expenses. Losing an entire income, whether it is the main or supporting income, can cause serious financial difficulties for the surviving spouse. If there are dependent children, they will also be affected. Leaving enough money to replace income will greatly reduce the stress of worrying about finances that surviving family members would otherwise experience. In addition to providing enough money to cover living expenses, it’s also helpful for individuals to ensure that there is enough money to pay for final disposition.

When deciding how much Life insurance coverage to buy, it’s also important to decide how the money will be distributed. Some people choose a lump sum, and some people choose monthly payments. Each person’s situation is unique, so it’s important to choose a plan that fits individual needs. Life insurance can also be used to give surviving children a good start in life. Parents can choose to leave enough money for their children to attend college. The costs of education are rising continually. Although Life coverage doesn’t have to cover 100% of education costs, any amount that contributes is less money that children or a surviving spouse have to pay toward the total bill.

Another option is to leave a lump sum of money to children entering adulthood. The sum might be paid toward student loan debt, a down payment for a property or for the cost of starting a business. Another choice people have for Life insurance is to leave enough to impact their community positively. Every person has values and views that are important to them. Using Life insurance funds as charitable gifts is a good way to leave behind a legacy that supports individual values. It’s often difficult to set aside such money while living. However, for a small investment amount, large sums of money can be distributed after death. The overall idea is that the importance of Life insurance is too crucial to neglect purchasing it. Life insurance benefits outweigh the costs substantially. Contact one of our agents to discuss what options are available to ensure that loved ones are protected.

CATASTROPHIC COVERAGE SAVES DOLLARS AND MAKES SENSE

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For some people, the preventive care options provided by traditional health insurance plans are not a benefit they want or can afford. Instead, a health insurance policy that covers them only in the case of a catastrophic event, such as a car accident or emergency surgery, is much more appealing and affordable. For these people, catastrophic coverage (also called major medical) offers the perfect balance between reasonable coverage and cost

What is Catastrophic Coverage?
Catastrophic coverage is generally sought out by individuals who do not anticipate needing full health coverage benefits but who do want the security of coverage in the event of an unexpected, emergency need.

Catastrophic health insurance often has a high deductible and low monthly premium, making it ideal for adults in their 20s who are without group coverage and adults between the ages of 50 and 65 who are primarily concerned with financial losses associated with heart attacks, accidents, and other serious illnesses. They are generally healthy, take few or no prescription medications, and would rather pay out-of-pocket for the occasional office visit to save on their monthly insurance premiums.

Deductibles
Catastrophic plans typically cover only major hospital and medical expenses above a certain deductible. The insured is responsible for paying the entire deductible, together with follow up doctor visits and any prescription drugs. Deductibles typically start at $2,500 and can be much higher-the higher the deductible, the less expensive the monthly premiums. If your treatment costs do not exceed your deductible, the insurer will pay nothing.

Limits
Most catastrophic health plans have lifetime maximum benefits payments. Once the expenses of your treatments have reached the amount of your cap, the insurance company will not pay for additional medical expenses and the policy will be voided.

Considerations
Before you buy a catastrophic health plan, consider:

  • How much of a deductible can you afford?
  • How extensive do you want your coverage to be?
  • Do you need prescription medicines?
  • Can you afford to pay for your own doctor’s office visits?
  • Do you have any pre-existing conditions?
  • Do you get sick often?